Student journalists across the nation face obstacles every day in obtaining what should be legally available information under state and federal freedom of information laws and the federal Clery Act, which requires schools to release crime information.
These obstacles can delay or prevent the public from obtaining information that could protect students from violent crime, potential health hazards or simply learning how state money is being used.
In many cases, the only option to force disclosure of information is to file a lawsuit. But in addition to being expensive, that also takes time.
”Any journalist who takes an open-records case to court is really acting on principle and not for a story because the process is just too slow to be all that helpful — even [for] an investigatory story that doesn’t need to be done the next week,” said Rebecca Daugherty, an attorney with the Reporters Committee for the Freedom of the Press. ”We’re talking about months and years to make the court enforce your rights to information.”
Daugherty, director of the Reporters Committee’s Freedom of Information Service Center, said some states have created alternative ways to resolve open-records disputes, such as appeals to an ombudsman, open-records council or the state’s attorney general.
She said these routes could be better options for journalists because they do not require them to wait for the courts to hear and decide their cases.
But journalists must be careful when trying to force disclosure.
”I think reporters have to do what they can to enforce the law,” Daugherty said. ”But they’re also plagued by trying to get along with the people who are going to give them information in the future. It would be better, I think, if officials charged with enforcing laws enforced the open-government laws.”
A group of students in Texas over the last year uncovered what some called a major problem at the state’s public and private universities. The students were part of the Light of Day Project, an open-records audit using the state’s open-records law and the federal Clery Act that was sponsored by the Freedom of Information Foundation of Texas.
”I think they uncovered a huge problem,” said Joel White, a Houston attorney and president of the Freedom of Information Foundation of Texas. ”It was very different from campus to campus, though. There were campuses [that] were in fairly reasonable compliance with both the Clery Act and the public information act. There were other campuses that had tremendous problems in complying with the law.”
The Clery Act requires public and private universities that participate in financial aid programs to provide a wealth of information and statistics about campus crime.
As part of the project, a group of students from the University of North Texas and Southern Methodist University examined crime statistics from more than 100 campuses.
Students in the group were assigned about 10 schools to examine, said Christina Jancic, who participated in the project and recently graduated from the graduate journalism program at the University of North Texas.
Jessica Savage, a reporter for Southern Methodist University’s The Daily Campus, ran into problems with two police departments while working on a story about a female student who was allegedly raped after returning to her apartment from a campus charity event.
Although the assault happened off-campus, the woman’s parents urged her to inform campus police because it was thought the man followed her home from campus, Savage’s story said.
The event was not brought to the attention of the SMU student body and the crime log on the SMU Police Department’s Web site never mentioned the incident as an assault, according to Savage’s story.
”It’s just disturbing to me that the police wouldn’t report what’s been reported to them as a sexual assault,” Savage said. ”It just makes you wonder why they wouldn’t report a sexual assault on campus.”
When working on the story, Savage also experienced problems with the Dallas Police Department, where the assaulted woman also filed a report.
Savage, who knew the woman, used the woman’s name to request the police report about the incident. Because she knew the name her request was denied, she said.
According to a letter from the Texas attorney general, because Savage knew the woman’s name, the entire report had to be withheld to protect the woman’s privacy.
After her story and others critical of the SMU police department were published, Savage said the newspaper had problems getting comment from the department.
Jancic also encountered problems during the project.
She said other students participating in the project were able to obtain free copies of documents, but she had to pay $130 for documents at the University of Texas at Arlington. Although the university was legally able to charge her, it was an attempt to ”stonewall” the request, she said.
She said officials used the law to their advantage, pushing the limits enough to stay within the law but far enough to try to discourage requests.
”I think they’re trying to hope that you don’t know the laws well enough. They’re just trying to bet on [that] maybe you won’t try as hard, you won’t be as diligent, you won’t be as persistent,” Jancic said. ”I think they’re just hoping that you don’t ask questions … They’re going to make you jump through the hoops that they legally can but they don’t have to.”
Like Savage, Jancic encountered situations at the University of Texas at Arlington where sexual assaults were listed in the school’s daily crime log simply as assaults.
”In my situation, when I did go over the daily logs and the police reports and asked why some incidents were listed as just assaults when they were actually sexual assaults, the police chief blamed it on record keeping,” Jancic said.
It is this misclassification of crimes that can be deadly to students, White said.
Jancic said if she had not been able to obtain police reports to compare to crime logs, she never would have known about sexual assaults she discovered at the University of Texas at Arlington.
”If I was [a student journalist at the University of Texas at Arlington] and I just went into the police office and looked at that daily log, nothing would have popped out at me. It was sort of under the radar,” she said. ”It wasn’t until I put the two together, the daily logs and the police reports, that I realized what it was.”
But the misclassification of crimes and ”stonewalling” by officials is not what concerned Jancic the most about the results of this project. Jancic and White agreed schools should do more to report off-campus crimes in areas frequented by students.
She said schools should not only report about crimes for more areas close to campuses, such as parking lots and apartments, but also surrounding neighborhoods as schools grow into them.
”[Officials will] go by the law, but maybe the law needs to be expanded because they can literally not include what happens just across the street, which is an area that students go through to get to their cars, parking lots,” Jancic said. ”It reflects how safe the area around the university is. That I’m very concerned with.”
Schools must include in their annual security reports crimes that occur on ”all public property, including thoroughfares, streets, sidewalks, and parking facilities, that is within the campus, or immediately adjacent to and accessible from the campus,” according to the U.S. Department of Education’s handbook on the Clery Act.
White agreed with Jancic about needing to report crimes that occur in areas near schools that attract large numbers of students, such as apartment complexes.
”It’s in the public’s best interest for those crimes to be reported so that students can protect themselves,” he said. ”But the fact of the matter is that many campuses did not report those crimes because they simply were not required to under federal law.”
White also said that even though penalties for noncompliance are built into the laws, they are not strictly enforced. In bringing the problems to the public’s attention, things might change, he said.
”If [parents] knew crime — sexual assault and violent crime — was intentionally being hidden, not disclosed, I think that would force major changes and I think it has,” White said. ”I think the Light of Day Project is a perfectly good example of that very thing because there were a lot of changes in light of those articles.”
White said the foundation is likely to push for legislation to open police records from private college police departments, something already introduced in Georgia and Massachusetts. (See ”Bills,” page 31.)
Daugherty said groups like the Freedom of Information Foundation of Texas have helped in changing state open-records laws.
”More and more you begin to see coalitions, public interest groups within the states take on FOI causes,” Daugherty said. ”And then the states where those efforts are vigorous, you’re seeing improvements in the law.”
But Texas is not the only state where students find laws in need of change.
”I think overall I’m satisfied with the responses that I’ve received [when filing requests] for items with the school,” Ryan Hutchins said. ”But, really, satisfied’ in the sense that it meets the status quo. And, unfortunately, I think the status quo, at least in New York, isn’t quite acceptable.”
In fact, Hutchins, a sophomore at Plattsburgh State University and managing editor of the school’s student-run newspaper, Cardinal Points, said he generally gets requested records within the state’s statutory five-day response period. He said the longest he has waited is two or three weeks.
But, he said, New York’s open-records law does little to compel disclosure. He said if his campus administration denies a request, he can appeal to the central administration of the State University of New York, but after that his options are limited and there is little chance he could take such a dispute to court.
”The likelihood that I’m going to press them that much is pretty slim,” Hutchins said. ”If they don’t want to release something, why would they?”
Despite his usually successful efforts in obtaining records, Hutchins said there is an ”atmosphere of apathy” created by the language of the state freedom of information law.
According to the New York Freedom of Information Law, public agencies have five business days to respond to written FOIL requests. This response can be the production of records, a letter denying the request or a letter giving a future approximate date of denial or granting of the request.
This ability to delay is unacceptable to Hutchins, although he said he and other reporters help records custodians delay the release of records by not closely monitoring their requests.
”What does it say if records officers see that reporters don’t take the law seriously enough to call them on it? Why should they take it seriously?” Hutchins asked. ”So I think if reporters always press the records officers for information, regardless of urgency, we would find probably much quicker response times in a number of instances when the law gets violated.”
REPEATED PROBLEMS, DIFFERENT AGENCIES
For Chris Terbrueggen, a recent University of Oklahoma graduate, it was not uncommon to run into problems when requesting information from the Norman, Okla., Police Department, the Cleveland County Court or his own university.
While writing for OU’s student-run newspaper, The Oklahoma Daily, Terbrueggen worked on a project examining the number of sexual assaults that occurred on and around campus.
”We were trying to find out over the last three years how many sexual assaults and rapes have occurred within a mile of the campus,” he said. ”Basically, we asked for a database of all incident reports related to sexual assaults and rapes.”
Terbrueggen said he received the database and was able to use the data to identify about 30 reported sexual assaults in the area he was examining. Although he received incident reports for each of the assaults, he said he was charged more than $30 for them — well above what Oklahoma state agencies are permitted to charge.
State agencies in Oklahoma can charge noncommercial requesters, which includes journalists, 25 cents per page or $1 per page for certified copies, up to 8 1/2 inches by 14 inches, according to the state open-records act.
But Terbrueggen said the city police department was not following the open-records act when it set its prices.
”There was a city ordinance on the books that basically let them set their own fee scale for incident reports,” he said. ”I noticed a lot with working with the Cleveland County Court system and also with the police department that both of those agencies have these fee scales in place that completely contradict the open-records act.”
In a November 2003 story in The Oklahoma Daily, an attorney for the city of Norman, Okla., Jeff Raley, said the fees were justified because of the administrative costs from clerks working overtime.
Terbrueggen said many times the problem with state agencies is that they do not understand the purpose of the media and that they do not distinguish between commercial and noncommercial requesters.
”Some of these agencies don’t understand the idea that we’re working for the public so it’s not for commercial purposes,” he said. ”It’s in the public’s interest.”
Terbrueggen’s problems extend beyond the city police department to the University of Oklahoma.
While investigating OU’s water system, which was listed by the Natural Resources Defense Council as a system with one of the highest arsenic levels in the nation, Terbrueggen ran into problems while trying to gain access to information about the school’s water system.
Terbrueggen wanted to know if the university was still using five water wells that it told state officials it would stop using after the wells were found in violation of water-quality standards.
But the university refused to supply the records, giving him limited data going back just four years, even though he requested information from as far back as 1974.
”Where information provided does not match information requested, we were unable to obtain such information,” a university official wrote to Terbrueggen in a memo dated February 13, 2004, although Terbrueggen said he did not receive the memo until the next month. ”That is not to say that the information doesn’t exist, but that, without a considerable amount of time spent searching old and archived records that would be extremely difficult to locate, we simply did not have the time to devote to responding to the request.”
Terbrueggen went to two other state agencies in his search for the pumping records, including the Oklahoma Department of Environmental Equality and the Oklahoma Water Resources Board, where Terbrueggen was able to find the information he needed.
”These permits were able to nail down when they were using and how much they were using,” he said. ”The story caused the [Department of Environmental Quality] to do an audit of the OU water system and found out they were using the wells after the officials that were working there at the time said they were not.”
The audit found 381 water violations to which the university admitted. Although the school could have been fined more than $9.5 million for the violations — the 1974 Safe Drinking Water Act allows fines of $25,000 per violation, according to Terbrueggen’s story — the university instead was required to educate the community about the violations.
It was only after the state completed its audit of the university that Terbrueggen received the records he had requested from the school, but they were in a measurement he could not decipher, he said.
In addition to the university’s refusal to hand over the water records, the administrator in charge of open-records requests is not available to handle requests at all times during normal business hours, as he believes state law requires.
”She had cases that were filed against OU or that OU filed that she had to take care of at the same time,” Terbrueggen said of the designated open-records custodian at OU, who is an attorney in the school’s legal counsel office. ”Her time was maxed out.”
WINNING THE FIGHT
In the end, students are usually able to find their way to the information they are searching for, without filing lawsuits.
Persistence can pay off, either with continued pressure on officials to release information or by finding another source for the information.
”If you can’t get access to the information, it stalls the story,” Terbrueggen said. ”You’ve got to be very creative and imaginative about how to get that information.”